1. ' SAJJAD ALI SHAH, J.---Through this execution application, decree-holder seeks enforcement of a consent decree dated 29-8-2002, whereby the judgment-debtor undertook to pay Rs,2,550,000,000 (Rupees two billions, five hundred and fifty millions only) by quarterly instalments commencing from 1-10-2002 right upto 1-10-2009, ' It appears that soon after passing of such decree, State Bank of Pakistan notified BPD Circular No,29 of 2002 dated 15-10-2002 and the judgment-debtor instead of adhering to the terms of compromise decree applied to avail the benefit of such Circular. It appears that NAB authorities facilitated a settlement between the parties, but ultimately the benefit of such Circular was denied giving rise to filing of Suit No,790 of 2004 seeking declaration regarding the applicability of such Circular to the case of judgment-debtor, Suit No,B-16 of 2006 seeking specific performance of such settlement and Suit No,45 of 2006 to restrain, the decree-holder from encasing the cheque given in consequence to the compromise decree and refund of down payment. Meanwhile, the decree- holder upon non-payment of the decreetal amount in terms of the compromise decree initiated the instant execution proceedings, the judgment-debtor objected to the maintainability of execution on the ground that it stood satisfied once an agreement between the parties in terms of BPD Circular No,29 was facilitated by the NAB and further that a suit for specific performance of such agreement as well as a suit seeking declaration as to the applicability of said Circular is pending adjudication. However, this Court vide a detailed order dated 2-4-2007 concluded that all the objections, so raised, including the one whereby judgment-debtor contended that the execution stood satisfied, can only be heard once the judgment-debtor furnishes security as envisaged under Rule 23-A of Order XXI, C.P.C. And consequently, directed the judgment-debtor to furnish security in the sum of Rs,2,481,013,802.21 within one month from the date of the order to the satisfaction of Nazir. The said order appears to have been maintained throughout.
2. ' The record further reflects that the judgment-debtor initially neither furnished security nor applied for the extension in time for submitting security in terms of order dated 2-4-2007 and consequently all properties described in column 11 of the execution application were attached by this Court on 13-8-2007. The judgment-debtor, thereafter, on 3-9-2007 applied to this Court seeking extension in time to furnish security, however, the exercise to submit security started without grant of extension which, ultimately, was granted by this Court vide its order dated 19-1-2009 allowing 30 days further time from the date of the order, for submission of security, thereafter, neither any extension in time to furnish security was applied nor allowed.
3. ' It appears that the judgment-debtor after moving an application for extension in time for furnishing security, as stated above, offered following properties as security :--
(i) 68-17 acres of land, Survey Nos.2 to 21 at Tapo Bolhari, Deh Sonvalhari, Taluka Kotri;
(ii) 81-15 acres of land, Survey No,646, Tapo Kotri, Deh Kotri, Taluka Kotri; and
(iii) 28 acres of land Survey No,735, Tapo Kotri, Deh Kotri, Taluka Kotri, and the value of the aforesaid properties as proposed by the owner/surety on 19-2-2009 before the Nazir was to the following effect:--
(i) 68-17 acres of land, price proposed over Rs,2 billions;
(ii) 81-15 acres of land, price proposed as Rs,1 crore per acre; and
(iii) 28 acres of land, price proposed Rs,1 crore per acre.
4. ' This Court on 26-10-2007 in order to ascertain the value of the proposed security at joint request appointed Messrs Zafar Iqbal & Co., and Messrs Iqbal Nanji as Joint Surveyors to survey and assess the value of said land, and the joint surveyors after inspecting the land in question placed before this Court a joint preliminary report on 29-1-2008, the gist whereof appears to be that the location of the land could not be ascertained as the owners did not provide all documents and sketches, but it was remarked that the area in which the land furnished as security is situated is vacant and undeveloped and on inquiry from the local estate agent it transpired that the land cited at serial No,1 above was under dispute. On assurance of the judgment-debtor to provide all necessary documents to ascertain the exact position of land the same Surveyor again carried inspection and filed joint report dated 8-5-2008. The crux of the report is more or less similar to the one earlier filed.
5. ' Thereafter this Court directed E.D.O. To facilitate inspection and to identify the land offered as security, the direction was complied with and thereafter the evaluators again filed a joint survey report dated 10th September, 2008, wherein they assessed the land cited at serials Nos.2 and 3 above to be ranging from Rs,150,000 to Rs,250,000 per acre and the land mentioned at serial No,1 above ranging from Rs,300,000 to Rs,400,000 per acre by a separate report filed on 14th November, 2008.
6. ' The record further reflects that this Court directed Nazir and Official Assignee, inter alia, to assess the aforesaid pieces of land and a perusal of such report reflects that they jointly proposed the value of land cited at serials Nos.2 and 3 at approximately Rs,100,000 per acre, however, the value of land mentioned at serial No,1 was not suggested on the ground that the land was under dispute.
7. ' Notwithstanding, this Court on 14-1-2009 while reserving the order on judgment-debtors' application for extension of time directed the Nazir to submit his report under Rule 100 of the Chief Court Rules and thereafter upon announcement of the order on 19-1-2009 for the first time extended period for submission of surety by 30 days from the date of the order. The record further reflects that in compliance to order dated 14-1-2009, Nazir, on the basis of inspection as evident from his Joint Survey Report on 27-4-2009 passed an order under Rule 107 of the Sindh Chief Court Rules (Original Side) by concluding his dissatisfaction on the ground that the security offered being insufficient and therefore, is rejected.
8. ' Mr. Farogh Naseem, learned counsel for the judgment-debtors, has made two fold submission, firstly that though the judgment-debtors do not doubt the integrity of the Surveyors, Officials Assignee, Nazir, who had surveyed and assessed the land offered as surety, but their grievance is that none out of these persons while assessing the land has taken into consideration that the land being Kabooli and can be utilized for residential purposes and therefore, should have been evaluated accordingly and price should have been fixed in square feet instead of acres and secondly that notwithstanding earlier order whereby this Court directed the judgment-debtors to furnish security in terms of Order XXI, rule 23-A, this Court while exercising power under Order XXI, rule 29 can stay the execution on the ground that suit filed by the judgment-debtors against the decree-holder are pending adjudication before this Court.
9. ' On the other hand, Mr. Munib Akhtar, learned counsel for the decree-holder, by referring to various reports of the Surveyors, has contended that the reference of the Nazir whereby he has shown his dissatisfaction regarding the value of the property offered as security is beyond doubt.. Learned counsel has contended that though the land may be Kabooli, but it is situated in a deserted place and its value has been appropriately assessed. In response to the contention of Mr. Farogh Naseem to stay the execution proceeding as envisaged under Rule 29 of Order XXI, C.P.C., it was contended that the said provisions are inapplicable to case in hand in view of special provisions of Order XXI, Rule 23-A, which were introduced in the Code of Civil Procedure in the year 1972 by Law Reforms Ordinance.
10. ' I have heard the learned counsel for the respective parties and minutely examined the record.
11. ' From the scrutiny of various reports submitted by the Surveyor as well as Nazir and Official Assignee, the location of the land offered as security after being identified and verified by the District Officer, E.D.O. (Revenue and Estate) Jamshoro as well as Mukhtiarkar Kotri, does not appear to be in dispute. The Surveyor has also placed on record some photographs of the said land in support of his report that the property which is offered as security is located in an undeveloped area with full of wild growth and about 6/7 kilometers away from Kotri Town and 3 kilometers from Kotri Industrial Area. The joint report of the Nazir/Official Assignee dated 16-12-2008 appears to be quite comprehensive, which has taken care of every aspect of evaluation in best possible manner.
12. The minute scrutiny of the said report reflects that the land in question is neither suitable for agricultural purposes being barren nor to launch a housing scheme as the nearest development appears to be 5/6 kilometers away. The Nazir as well as Official Assignee has taken the pain of enquiring from the Sub-Registrar Kotri regarding the sale/purchase of the land situated in the similar location and after considering all factors have evaluated the land cited at serials Nos.2 and 3 at Rs,100,000 per acre. The contention of Mr. Farogh Naseem that the land being Kabooli can be used for residential purposes has also been catered in para.9 of the said report in the following words:- "So far as "Sikni land" is concerned, it is always used for residential purpose. The agriculture lands are converted into sikni land for housing schemes. In the instant case, no developing housing schemes of any kind was noticed in the surrounding of the land in question, particularly within an area of 5/6 kilometers. The land in question at present can never be considered as Sikni land and therefore, its value can never been calculated in the terms of feets or yards. No sane person can make investment in the land in its present condition for using the same for housing schemes, after considering the same as 'Sikni land'. Therefore, we are not in position to determine the value of land according to feet/yard, the land in question can only be considered as an agricultural land and its value would be determined after treating/considering the same as an agricultural land and keeping in view the present circumstances, we have calculated the reasonable price of land per acre more or less Rs,1,00,000 (Rupees one lac)."
13. ' As to the land cited at serial No,1 with the proposed value of Rupees over two Billions, the joint report fully describes the land in para.10 which per report in the year, 1963 was granted for installation of cement factory and is situated at hilly tract adjacent to Bye Pass connecting to Super Highway and since the land appears to be under dispute, therefore, the value was not assessed, however, the value of the said land finds mentioned in the joint report of the Surveyor dated 14-11-2008 as ranging between Rs,300,000 to Rs,.400,000 per acres.
14. It is also to be kept in mind while evaluating a property that mere permission to use it for a particular purpose does not necessarily changes its value unless it is suitably located. In the instant case though the kabooli land may be used for residential purposes but its location does not permit its beneficial use for residential purposes as the nearest construction was found at a distance of 5/6 kilometers and no A prudent person would pay the price of such land at the rate claimed by the judgment-debtor. It is also important to observe that the total value of the land as assessed by the evaluators roughly comes to hardly Rupees fifty millions, whereas, the judgment-debtor is supposed to furnish surety in the sum of Rs,2.481 million.
15. ' After minutely perusing various Surveyor reports/Nazir Reports, I am of the view that the judgment debtors malafidly by insisting to evaluate the land in square feet with sole intent to exaggerate its value, has successfully prolonged the execution of a Consent money decree for more than two years. I, therefore, while taking on record all Nazir/Official Assignee's reports, reject the objections and accept the Nazir Report dated 27-4-2009 under Rule 107 of the Sindh Chief Court Rules (Original side).
16. ' As to the plea of the judgment-debtor to stay the present proceedings under Rule 29 of Order XXI, C.P.C. Till the suit filed by the judgment-debtors against the decree-holder are decided cannot be beneficially examined unless the claim of the judgment-debtor against the decree-holder and the object of rule 29 is looked into. The object of rule 29 of Order XXI, C.P.C., appears to be two fold firstly to enable the judgment-debtor and decree-holder to adjust their claims against each other and secondly to prevent multiplicity of the execution proceedings. However, in the instant case there is no independent recovery claim of the judgment-debtor against the decree-holder but the judgment-debtor in one of his suits has challenged the consent decree by pleading his entitlement under BPD. Circular No,29 of 2002, the, benefit whereof was refused to the judgment-debtor, whereas in another suit, satisfaction of the decree by an uncertified adjustment settlement outside the Court is claimed. The record reflects that all the objections which the judgment-debtors have tried to raise by this application, were raised in their objections to execution and this Court vide its detailed Order dated 2-4-2007 directed furnishing of security as envisaged under rule 23-A of Order XXI, C.P.C., which order the judgment-debtor till date has failed to comply. Even otherwise while exercising powers under Rule 29 of Order XXI the executing Court has no power to order stay of execution in a case where the suit against decree-holder is for declaration that the decree stands satisfied by an uncertified adjustment outside the Court.
17. The application further appears to have been filed not only to circumvent the provisions of rule 23- A of Order XXI, C.P.C. Or to stealthily seek review of Order dated 2-4-2007 but also to delay the recovery proceedings. The record reflects that the judgment-debtor after consuming more than two years in security proceedings, on 21-5-2009 moved this application knowingly that the matter was fixed on 22-5-2009 for hearing of Nazir references with a mark of caution that no further adjournment on any ground whatsoever shall be granted, with a hope to further delay the recovery.
18. In view of what has been discussed above, I do not find any cogent reason to stay the execution proceedings, the application consequently is rejected and resultantly the execution is allowed as